SINDHU SHANKAR LOHOKARE Vs. KUSUM GAJANAN PAWAR

JUDGEMENT

(1.) This writ petition under Article 227 of the Constitution of India takes exception to the Judgment and decree passed by the 12th Additional Judge, Pune dated 19-7-1991 in Civil Appeal No. 880/1987 which in turn has confirmed the Judgment and decree for possession of the suit premises passed against the petitioner-defendant No. 3 on the ground of arrears of rent by the Ilnd Additional Small Causes Judge, Pune dated August 1, 1987 in Civil Suit No. 4/1983.

(2.) Briefly stated, the premises in question consist of a shed-cum-room admeasuring about 40 feet X 18 feet situated at CTS No. 35, Sadashiv Peth, Pune. The case of respondent No. 1-plaintiff was that the aforesaid suit premises were let out to respondents 2 and 3 herein (defendants 1 and 2) for the purpose of running a laundry business. Whereas, the respondent No. 1 found petitioner (defendant No. 3) in possession of the suit premises sometime in 1980. Accordingly, respondent No. 1 issued legal notice to respondents 2 and 3 not only demanding arrears of rent but also terminating the tenancy. Copy of the said notice was marked to petitioner (defendant No. 3). On the basis of said notice, respondent No. 1 proceeded to institute Suit for possession of the suit premises against the defendants, namely, respondents 2 and 3 and petitioner herein, on the ground that the defendants 1 and 2 (respondents 2 and 3 herein) have unlawfully transferred the suit premises in favour of petitioner (defendant No. 3). Respondent No. 1 also alleged that the petitioner (defendant No. 3) without his consent in writing erected a permanent structure in the suit premises. Respondent No. 1 further alleged that in spite of legal notice and raising demand regarding arrears due from June 1980 to November, 1981 in terms of Demand Notice dated 22-10-1982 Exhibit 59, the defendants have failed and neglected to pay the arrears and were defaulters. On the above basis, respondent No. 1 (plaintiff) prayed for possession of the suit premises.

(3.) The said suit was resisted by the defendants. The defendants denied the allegation of unlawful subletting and instead asserted that a running business was transferred and assigned in favour of petitioner (defendant No. 3) by the respondents 2 and 3 (defendants 1 and 2) which was permissible in view of provisions of section 15 of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 (hereinafter referred to as Bombay Rent Act) as applicable to the suit premises at the relevant time. Insofar as allegation of erection of permanent structure in the suit premises the same was also stoutly denied. In so far as ground of arrears of rent is concerned, the petitioner (defendant No. 3) principally, in the first place, submitted that rent was paid from time to timedirectly to the plaintiff for which no receipts were issued. It was next asserted that petitioner (defendant No. 3) being a transferee/assignee of the running business was tenant within the meaning of section 5(1 l)(aa) of the Act. However, no notice of demand was addressed to the petitioner (defendant No. 3). The demand notice Exhibit 59 was addressed to defendant Nos. 1 and 2 only and a copy thereof was marked to the petitioner (defendant No. 3). It was contended that forwarding copy of the demand notice was not sufficient compliance of the mandatory requirement of issuance of demand notice even against the petitioner (defendant No. 3) being the transferee/assignee in respect of the running business conducted from the suit premises at the relevant time. The petitioner (defendant No. 3) also asserted that the running business was taken over by a partnership firm of which petitioner-defendant No. 3 was one of the partner. The other partner Shri Wagh, though a necessary party, was not impleaded, for which the suit suffered from non-joinder of necessary party. Broadly, on the above stand the defendants contested the suit.